The decision in Timbs v. Indiana is a significant step forward for property rights and civil liberties, though a key issue remains to be resolved by lower courts.
ILYA SOMIN | 2.20.2019 12:20 PM

Asset forfeiture.
Earlier today, the Supreme Court issued its ruling in Timbs v. Indiana. The decision is potentially a major victory for property rights and civil liberties. The key questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is “incorporated” against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. The justices answered both questions with a unanimous and emphatic “yes.” As a result, the ruling could help curb abusive asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime—including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a widespread problem that often victimizes innocent people and particularly harms the poor.

It would have been a major anomaly for the Court to conclude that the Excessive Fines Clause does not apply to state governments, after it has previously ruled that the Fourteenth Amendment incorporates nearly all of the rest of the Bill of Rights against the states, including the Excessive Bail and Cruel and Unusual Punishment Clauses of the very same amendment. Justice Ruth Bader Ginsburg’s majority opinion offers a good explanation of why incorporation of the Clause is easily justified under the Court’s precedents, which require “incorporation” of those provision of the Bill of Rights that protect rights understood to be “fundamental” to our legal tradition:

A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,”or “deeply rooted in this Nation’s history and tradition…”

The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, butafter the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .”

Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay….

When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted….”

Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions…

An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines…..

Today, acknowledgment of the right’s fundamental nature remains widespread. As Indiana itself reports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality….

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago…. Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” Harmelin v. Michigan, 501 U. S. 957, 979, n. 9 (1991) (opinion of Scalia, J.)…

In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection againstexcessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”

Justice Ginsburg also rejected the State of Indiana’s argument that the Excessive Fines Clause does not apply to in rem civil asset forfeitures, where the government—in theory—files a claim against the property itself, rather than against the owner, as such. She did so in large part because the Supreme Court had already ruled that the Clause applies to at least some civil forfeitures in its decision in Austin v. United States (1993), and Indiana had not asked for Austin to be overruled. In theory, therefore, the Court could decide to overrule that precedent in a future case, where the issue was properly raised. But it seems unlikely that the justices have any desire to do that.

It is also significant that the Court rejected the argument that the Excessive Fines Clause should not be incorporated because its application to in rem civil forfeitures is not “deeply rooted” in American history, even if application to other kinds of forfeitures is:

As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated.

For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment….” We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted.

In sum, the Court unanimously agrees that the Excessive Fines Clause applies to state governments and that it covers civil asset forfeitures. That is a potentially significant victory for property rights and civil liberties, because it could help curb widespread asset forfeiture abuse. While virtually all states have similar clauses in their state constitutions, many are not aggressively enforced by state courts in asset forfeiture cases.

The Court did leave one crucial issue for future consideration by lower courts: the question of what exactly counts as “excessive” in the civil forfeiture context. That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal. But, hopefully, that will not prove to be the case.

In my view, the Timbs case itself should be fairly easy to decide on remand. In United States v. Bajakijian, a criminal forfeiture case, the Court ruled that “a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” The same approach could potentially be applied to civil forfeitures. It is hardly a precise standard, and it may often be hard to tell whether a forfeiture is “grossly disproportionate” or not. But Timbs seems clearly on the “gross” side of the line. The state of Indiana seized the defendant’s brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000—a very large disparity. But there are likely to be cases where things are much less clear.

Ginsburg’s majority opinion was joined by a total of eight justices. In separate concurring opinions, Justices Clarence Thomas and Neil Gorsuch argue that “incorporation” should proceed under the Privileges or Immunities Clause of the Fourteenth Amendment, rather than under the Due Process Clause (the vehicle used by the Court for the last century or more). Thomas’ opinion reprises many of the arguments he made for this theory in his insightful concurring opinion in McDonald v. City of Chicago (2010), the case that incorporated the Second Amendment against the states.

The idea of reviving the largely moribund Privileges or Immunities Clause enjoys widespread (though not universal) support from legal scholars across the political spectrum. Supreme Court justices have been much more wary. It is notable that Thomas’ quest to bring it back now has a supporter in Gorsuch, whereas previously he was largely alone. But, as he is still three votes short, it seems unlikely that Thomas will succeed in his effort anytime soon.

In the meantime, it is clear that both Thomas and Gorsuch (like the other justices) agree that the Excessive Fines Clause should apply to the states, and that the Clause constrains civil asset forfeitures. Thomas is in fact a longtime advocate of stronger judicial review of forfeiture cases.

NOTE: Timbs was represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case.